In July 1940, the trustees of Dartmouth College deeded the property known as Elm Bank, a 182-acre estate on the Charles River in Dover previously owned by the Baltzell family, to the Stigmatine Fathers, a religious order. Primary access to Elm Bank was from Route 16 (Washington Street in Wellesley) and over Cheney Bridge at the propertys western boundary near its main building, the Baltzell Mansion. But included in the deed was an appurtenant right of way for all usual purposes over the existing driveway, running in a southerly direction over land then owned by Dartmouth to Dover Street (now Dover Road) in Dover (the easement). See Ex. A to the Decision (Land Court Plan 20044A). Dartmouth subsequently registered its remaining land, part of which has since become a quiet residential neighborhood (Lot C on Ex. A). A portion of the easement and an additional section of road extending to the east serves as access to this neighborhood and is now known as Turtle Lane, a private way. See Ex. B to the Decision (Decision Sketch). The remainder of the easement leads from Turtle Lane to the boundary line with Elm Bank. Id.; see also Ex. C to the Decision (Land Court Plan 20044H). That section (often identified as the driveway) also is a private way.
At issue is the scope of the permissible use of the easement by the current owner of Elm Bank, the Commonwealth, and its lessee, the Massachusetts Horticultural Society (MassHort), which has located its headquarters on the site. The plaintiffs assert that defendants Department of Conservation and Recreation (DCR) (which administers Elm Bank), MassHort, and the defendants invitees have overburdened the easement. They further contend that Chapter 624 of the Acts of 1986 prohibits the defendants and their invitees from using the easement for anything other than emergency access to Elm Bank. The defendants disagree and contend that they have an easement for all usual purposes, they have not overburdened the easement, and the emergency access provision of Chapter 624 does not apply.
A trial was held, jury-waived, and a view was taken. For the reasons set forth in the courts Decision of this date (and as more particularly described therein), I find and rule that the Commonwealth currently can use the easement at issue in this case for emergency access only. Accordingly, the defendants are hereby ENJOINED from using the easement for any use other than true emergencies unless and until the legislature amends or repeals Chapter 624. As noted in the Decision, the closure of Cheney Bridge for necessary repairs constitutes an emergency. However, during such bridge closures, the defendants shall not schedule large events such as soccer tournaments and are thus hereby ENJOINED from doing so.
I also find and rule that if the legislature repeals the emergency access provision in Chapter 624, the defendants rights to use the easement are governed by the analysis in the Decision regarding the grant of the easement in the Stigmatine Deed (those that are reasonable in light of the circumstances surrounding such grant). As explained in greater detail in the Decision, the defendants may use the easement to access Elm Bank for park purposes, educational programs, and recreational events. Such access not only includes vehicular traffic (including heavy vehicles), but also pedestrian and bicycle traffic so long as all traffic can stay within the confines of the fifteen-foot-wide easement and so long as it does not rise to the level of a nuisance. Such traffic may occur during the day, at night, and early in the morning. It is not reasonable and thus not permissible, however, for the defendants to use the easement to access Elm Bank for commercial activities (e.g., circuses, movie productions, wedding receptions, business conferences, or events of a similar nature) and they are thus hereby ENJOINED from doing so. Finally, it is not permissible for the plaintiffs to interfere with the defendants easement rights and, accordingly, the plaintiffs are hereby ENJOINED from placing any obstacles (such as boulders and logs) within the fifteen-foot-wide easement and from preventing the defendants from improving their easement.
SO ORDERED.
By the court (Long, J.)
KENNETH RENDELL, SHIRLEY McNERNEY, SALWA FAM, DAVID CAHAN, ROBERT GOREN as trustee of the RIVERWAY REALTY TRUST, MIRIAM W. ODAY as trustee of the ODAY FAMILY TRUST, GEORGE HRICKO, BENAE HRICKO, MARY LEE FLEISCHMANN, ROBERT PURDY, SYLVIA PURDY, LAWRENCE TSEN, PAULITA TSEN, SUZANNE McCARTHY, ROBERT LOBEL, STANLEY BERMAN, and HARRIET BERMAN v. MASSACHUSETTS DEPARTMENT OF CONSERVATION AND RECREATION, STEPHEN BURRINGTON as the